Among the rights listed in the First Amendment are freedom of the press, freedom of speech and the freedom to peaceably assemble and petition the government for redress of grievances.

In a letter in the Jan. 16 edition of this newspaper, Dan Braswell admonished the paper for allowing a reader to exercise their First Amendment right to free speech. Braswell later endorsed Delegate John McGuire (R-56) for U.S. Congress.

In April, McGuire posted on his Facebook page that we the people must be heard, at the same time censoring comments from constituents disagreeing with his position. If you pay close attention, you can detect a high-pitched incessant whine about mistreatment from some voters.

What we have is an advocate for infringement of First Amendment rights, endorsing someone who practices infringement of these rights, for an elected position where those rights are especially crucial. Why treat constituents that way unless you have no intention of speaking on behalf of everyone? If his views and masculinity are so fragile that they cant stand up to honest criticism and questioning, whats the worth of those views and McGuire? There is no honest discourse when someone scurries away for fear of being offended.

Who does McGuire think of as we the people, while actively muzzling our voices? In that post he states, these folks here all reminded us this is the government of the people, by the people, for the people and our voices will be heard. But he still censors. For all the talk of honoring our Constitutional rights, he seems to have lost track of the First Amendment.

An interesting omission is an explanation for his comment, Blue Virginia posted a quote from me to try and bully me into silence. I wonder what that quote from him was and how something that McGuire himself said could be used to bully him. (Maybe there was some unappreciated sarcasm but it sounds like more whining while blocking comments.)

Both McGuire and Braswell tout the bona fides of Navy SEALs as qualification to represent the electorate, relying on some mystical, non-existent tough guy image. Its difficult to distinguish where McGuire stops complaining and tries to talk policy. If this SEAL is that sensitive and insecure, he doesnt even qualify to continue to act as delegate. There are enough people in Washington destroying the foundations of the Constitution; we should be removing them instead of sending reinforcement.

The experiences of McGuire and Braswell indicate that they prefer to deal with a submissive electorate. We should be asking: Why is it important for McGuire to prohibit expressing differences of opinion as provided in the First Amendment? Should we the people acquiesce to someone who not only doesnt bother to listen, but actively shuts down our voices?

We need to elect officials who will listen to all points of view without offense. We cant afford to be silent about McGuire trying to silence us.

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Delegate abuses First Amendment Rights | Letters To The Editor - The Central Virginian

Post Views: 141

Neal Boortz, former attorney and popular radio host famously said, Free speech is meant to protect unpopular speech. Popular speech, by definition, needs no protection. In the rest of the western world, speech is not protected. In Canada, comedian Mike Ward was fined $42,000 by the Human Rights Tribunal for telling a joke about young disabled singer, Jeremy Gabriel. In Scotland, stand up comedian and YouTuber Mark Meechan was brought to court and fined $800 by the British government for making a video of his pug doing a Nazi salute. Whether or not one sees the humor in this, by an American standard it is clearly ridiculous that any government would infringe upon a comedians free speech rights.

America has a long history of defending even the worst kinds of speech in our society. The American Civil Liberties Union (ACLU), which fights for the rights of immigrants, LGBTQ, reparations and reproductive rights, also fights to defend the greatest constitution ever written in the history of mankind, for it provides more civil liberties and freedoms for its people then any constitution ever has.

The ACLU defended the Nationalist Socialist Party of Americas (NSPA) right to march in 1977 in Skokie, Illinois. The Village of Skokie passed three city ordinances which would prevent any future political demonstration like this from ever happening. People could not wear military-style uniforms during demonstrations, the distribution of hate speech literature was prohibited and there was a required $350,000 insurance bond to hold a demonstration. The case was taken to the Supreme Court in National Socialist Party of America v. Village of Skokie in which the ACLUs lawyers argued before the court that to prevent the NSPA from marching was a violation of the First Amendment.

The requirement of a $350,000 insurance bond is similar to todays battle on college campuses over exorbitant security costs on student clubs that want to bring incendiary speakers to campus. These student clubs, aided by groups similar to the ACLU like the FIRE Legal Network which focuses specifically on defending the First Amendment on college campuses, have argued that these security costs prevent clubs from bringing speakers to campus a clear violation of the right of the people peaceably to assemble.

Nevertheless, there are limits to the peoples right to free speech. In the 1969 Brandenburg v. Ohio decision the Supreme Court wrote, Speech aimed at sparking lawless action such as inciting a riot, true threats or words that incite violence. The problem with this is that those seeking to limit college campus free speech have used this case to justify shutting down speakers.

It should be obvious to anyone that the ruling applies to what the speaker says, not how people are offended by it. For example, if an incendiary speaker like Richard Dawkins, who has been denied a platform before by universities such as UC Berkeley, advocates for atheism and then encourages his audience members to go out and harm Christian students on campus, this would violate Brandenburg v. Ohio. Making a criticism of someones belief system or political ideology is not an advocation of violence. It was clearly not the intention of the Founding Fathers that the peoples right to freely assemble should be infringed upon or prohibited because a separate group threatens violence.

What is considered to be hate speech or a controversial idea is ultimately subjective. A Catholic student club might find sexually explicit images offensive while a person who advocates for sex-positivity might consider this to be an element of her free speech. Essentially, all people have strongly held beliefs and an identity which carries an ideology, and when those strongly held beliefs are criticized or challenged, they might very well be offended.

It is important that people do not just use their right to free speech, but they should also devise solutions to remedy violations. First and foremost, the equal time clause, Requires radio and television stations and cable systems which originate their own programming to treat legally qualified political candidates equally when it comes to selling or giving away air time, should be expanded not only to all forms of news media but also to college campuses.

Moreover, social networks should be considered public forums and subject to the First Amendment protections, meaning that companies like Facebook and Twitter cannot mitigate or shut down certain speakers while propagating others. As these social networks become an increasingly popular way in which Americans consume their news, they should be subject to the same equal time clauses as traditional news media companies.

Last but not least, public universities that consume tax dollars who deny any speakers a platform to speak should lose their public subsidies. The dollars of liberals, conservatives, libertarians and socialists, pay to support our public parks, public hospitals and even public universities. Therefore, its very usage is supposed to be available to everyone, because every American, of all ideological backgrounds, pays into the system to support these amenities that improve society.

The whole point of the First Amendment is to allow controversial speech. Words can be restricted when they incite violence or call one to action, but merely offensive words are not an incitement of violence. It was former U.S. Congressman Henry Hyde who said, Free Speech is meaningless unless we tolerate the speech that we hate. Free speech is not a privilege, its an unalienable right, and every new generation of Americans has to fight to preserve it, otherwise it will slowly be chipped away until it is completely eroded and we are left with nothing but rubble.

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America's First Amendment is what sets it apart from the rest of the western world we have a duty to protect it - Highlander Newspaper

Opinion | LetterEveryone who wants to see our freedom of civil discourse continue must speak out

By Matt Regier // May 31, 2020

One of the elements at the heart of the First Amendment is a deep respect for the people. It is the public that has the great responsibility of listening to free speech and determining the validity of that speech. We were entrusted by the framers of our nation to have the discernment to judge for ourselves. That is why I was very concerned to read the Flathead Beacon article, Pressure Intensifies on County to Remove Health Board Member. It quotes the Whitefish City Council saying Dr. Bukaceks right to engage in free speech ends where the publics right to be safe from COVID-19 begins.

A quick search to learn more revealed Dr. Birx (an Obama appointed U.S. AIDS coordinator and White House coronavirus task force appointee) stated, There is nothing from the CDC that I can trust. She also said she was worried the CDC was inflating the COVID-19 death rate by as much as 25% (Washington Post, May 9). No matter where you land on the topic of death rates, CDC, government response etc., should we not be able to have the discussion on these topics?

Health board members or Dr. Birx are not my point in writing. This pandemic will pass and we will be on to something else. What will not pass is a city council that is so scared of the First Amendment and the power that it gives to the people that they feel the need to silence the conversation.

I have many friends that are liberal in their thinking. It is fun to grab a pint with them and chat about government roles and personal freedoms. At times we agree, sometimes minds are changed but most of the time we walk away having had a rousing conversation and a good IPA. The same happens with my conservative friends. However, a leftist does not want to even have the conversation. They make accusations like being a danger to the citizens. This of course is according to them. The underlying notion is they dont trust the publics intelligence enough to think for themselves. They skip the dialog and say things like right to engage in free speech ends where the publics right to be safe from COVID-19 begins.

What is ironic is that the Whitefish City Council does have the First Amendment right to express speech that degrades and limits that very same First Amendment right. It is up to us, the people, to stand up for our rights against those that express anti-constitutional views. There are those that enjoy a good conversation; liberal, conservative, independent or even if you are one who could not care less about politics. Everyone who wants to see our freedom of civil discourse continue must speak out. We can change minds, change votes, and change leadership of those around us. Bottom line is have the conversation. President Ronald Reagan was right when he said Freedom is never more than one generation away from extinction It must be fought for, protected, and handed on for them to do the same.

Rep. Matt RegierR-Columbia Falls

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Stand Up for the First Amendment - Flathead Beacon

To the Editor:

Re Trump Claims Hes Protecting Free Speech by Reining In Tech Giants (news article, May 29):

It shouldnt surprise anyone that Donald Trump claims hes being denied his right to speak when Twitter marks his lies with a fact-check asterisk. He has no clue that the First Amendments prohibition on interfering with ones speech rights applies only to government.

But his executive order purporting to strip the company of liability protection, a pathetic (and unlawful) attempt to retaliate, is itself government action to chill and limit speech. Maybe he should read the First Amendment its only 45 words long.

Richard YospinNewton, Mass.

To the Editor:

Re What Would Happen if Twitter Banned Trump?, by Charlie Warzel (Opinion, nytimes.com, May 27):

Twitter is more than a little late to the party with its Get the Facts link appended to President Trumps latest lies about mail-in voting. It seems to me that short of barring Mr. Trump from Twitter, the least that Twitter could do would be to append a Get the Facts link to every one of his tweets that contain outright lies, baseless accusations, support for racist and white supremacist beliefs, bullying based on peoples appearance, and implicit or outright threats of violence. In other words, pretty much everything that he tweets.

Thom ThackerIrvington, N.Y.

To the Editor:

In Im Not Mrs. America. Thats the Point (Op-Ed, nytimes.com, May 21), Im afraid that Cate Blanchett misses the point. She posits a deep divide between feminists and the followers of Phyllis Schlafly, the character she plays, and calls that divide the difference between staying at home and making your way in the world, or between the demands of faith and the indulgence of the self.

In fact, there are homemakers, worldly women and women of faith on both sides of an ideological and political divide that is all too real.

At the same time, Ms. Blanchett describes the divide as an illusion and a simplified antagonism. In truth, the divide between feminists and anti-feminists is real and critical. Its the difference between those of us who consider women to be full human beings deserving of equal rights, dignity and the freedom to control our own bodies, and those who believe that women should be submissive to men, taken care of by men and subject to male authority.

Ms. Blanchetts faith in art to bridge her misconstrued divide trivializes the urgent threats from todays Schlafly clones, who would deny women access to birth control, reproductive autonomy, child care and a host of other rights that are hardly illusory.

Letty Cottin PogrebinStockbridge, Mass.The writer is a founding editor of Ms. magazine and the author of several books about womens issues.

Larry Kramer Gave Hope to Those With AIDS

To the Editor:

Re Larry Kramer, 1935-2020: An Activist Who Gave People With AIDS a Voice. A Loud Voice (front page, May 28):

Larry Kramer gave AIDS patients something intangible, but vitally important. He gave them hope.

My brother Alan first told me about Larry and the Gay Mens Health Crisis in the early 1980s, when Alan was first diagnosed. Alan had hope that people like Larry could make enough noise, fast-track medicine and save lives, including my brothers. The only thing that Larry couldnt give many of them, including Alan, was enough time.

My brother died on April 1, 1990, in San Francisco. While time was not on Alans side, Larry Kramer did make a difference, and countless people are alive today because of him.

Tom GoodmanNew York

To the Editor:

Where Did All the New Yorkers Go? Follow the Mail (news article, May 19):

A big thank you goes out to my neighbors on the Upper West Side who decided to flee the city. I stayed and fortunately am not feeling lonely and isolated. I did not really need your tracking data to tell me my building was nearly empty, but confirmation is nice.

Thank you, fellow residents, for making me feel safer from contracting the virus, with fewer people to come in contact with: no crowded elevators in the building or traffic in the lobby, and no competition in the laundry room. And fewer people in the park, on the streets and at the supermarket.

Having been recently widowed, and healthy but in the at-risk age group, I have learned to live alone and cope as best I can with the pandemic. Some days the only other human I interact with in person is the doorman, who greets me in the morning with my newspaper. The wonderful staff of my building are here, and I thank them for their presence, as well as the other essential workers who keep this city running.

I count my blessings daily.

Betty WelkerNew York

To the Editor:

Re With Classes or Without Them, Colleges Want to Play Football (front page, May 28):

From Horse Feathers in 1932, starring the Marx Brothers:

Groucho (as Quincy Adams Wagstaff, a new college president): Have we got a stadium?

Faculty: Yes.

Groucho: Have we got a college?

Faculty: Yes.

Groucho: Well, we cant support both. Tomorrow we start tearing down the college.

Mark FeldmanKirkwood, Mo.

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Trump, Twitter and the First Amendment - The New York Times

A CNN news crew on Friday live broadcast their own arrest by police in the U.S. state of Minnesota, as they covered protests over the death of an African-American man.

Police handcuffed and arrested CNN reporter Omar Jimenez, producer Bill Kirkos and photojournalist Leonel Mendez at about 5 a.m. CT in Minneapolis, despite Jimenez identifying the crew as press. All three were later released without charge.

The arrests came amid widespread protests over the death of George Floyd, an African American man who pleaded for air while handcuffed, as a white police officer knelt on his neck.

Minnesota Governor Tim Walz issued what he called a very public apology Friday for the arrest of the CNN crew, saying, There is absolutely no reason something like this should happen. He added that he is owning this and taking full responsibility. This is a very public apology to that team. It should not happen.

CNN said on Twitter the arrests were a "clear violation of their First Amendment rights." The U.S. broadcaster added that police had asked another of their correspondents, who is white, to move but that he had not been arrested.

Josh Campbell, a reporter for CNN who was also covering the protests, said he was approached by police but not arrested.

"I was treated much differently," Campbell told CNN. The broadcaster reported that Jimenez is black and Latino, Mendez is Hispanic, and Kirkos and Campbell are both white.

The Minnesota State Patrol said on Twitter that the journalists were among four people arrested while police cleared the streets. It added that they were released after police confirmed they were media.

Bruce Gordon, director of communications for the Minnesota Department of Public Safety, directed VOA to the state patrol tweet on the incident posted earlier on Friday, and Governor Walz's comments at a news conference.

Walz said there was "absolutely no reason something like this should happen."

"In a situation like this, even if you're clearing an area, we have got to ensure that there is a safe spot for journalism to tell the story. The issue here is trust," Walz said.

The National Association of Black Journalists (NABJ) president, Dorothy Tucker, condemned the arrests as "unnecessary, and a violation of the First Amendment."

The Save Journalism Project said Jimenez's arrest "underscores the reasons for the protests he was covering."

"Jimenez was arrested for doing his job, accurately reporting to the American people what is happening during an ongoing crisis. He was arrested for reporting on the protests of the killing of George Floyd an unarmed black man by Minneapolis police while being black himself," the free press advocacy group said.

Since 2017, more than 40 journalists have been arrested and at least 19 journalists had equipment searched or seized while covering protests, according to the U.S. Press Freedom Tracker, which documents press freedom violations across the United States.

The U.S. Press Freedom Tracker told VOA it is currently investigating at least four cases of journalists being "hit with crowd-control projectiles" during protests in Minneapolis recent days.

"Protests can be dangerous places for journalists. Since the U.S. Press Freedom Tracker began documenting aggressions against the press in 2017, we've published more than 100 incidents of journalists either arrested, assaulted, had their equipment damaged or searched or seized while reporting from protests," Kirstin McCudden, managing editor of the Tracker, told VOA.

The Committee to Protect Journalists has previously reported that journalists of color say covering protests carries additional risk.

Two African-American reporters for WHAM-TV were arrested while covering protests in Rochester, New York, over police brutality in July 2016. And during the 2014 riots in Ferguson, Missouri, then-Washington Post national correspondent and NABJ's Emerging Journalist of the Year Wesley Lowery was arrested alongside Huffington Post reporter Ryan Reilly, covering the unrest.

"I wasn't shocked, I wasn't surprised," Lowery said of watching footage of Friday's arrest in Minneapolis.

"And this is not to excuse the behavior at all," he told VOA, adding that he knew from his own experience that these "dynamic situations" make it difficult for law enforcement to figure out what to do. "They're receiving pressure to keep order; they're receiving pressure to respect First Amendment rights which, again, I unequivocally believe they need to but I understand how poor decisions can be made in that pressure cooker."

Lowery said official condemnation in these situations is vital.

He is now a correspondent for "60 in 6," a soon-to-launch spinoff of the CBS series 60 Minutes that is scheduled to stream on Quibi mobile platforms.

Rights groups have condemned the arrests as an assault on press freedom.

"The First Amendment protects news-gathering, and prohibits the government from using police power as a pretext for interfering with press freedoms. Arresting journalists to prevent reporting on a public demonstration is not acceptable," said Bruce Brown, executive director of the Reporters Committee for the Free Press.

"News coverage of protests like the one in Minneapolis is essential to informing the public and understanding the concerns of our communities."

The CPJ said the arrests "ring of intimidation" and that journalists should be free to report without fear of retaliation.

See more here:

Arrest of CNN Crew in Minneapolis a 'Violation of First Amendment' - Voice of America

In episode 123 for June 1st 2020: The controversy continues over fact checking and First Amendment rights on Twitter, and why government mandated encryption backdoors are bad for everyones security.

** Show notes and links mentioned on the show **

Trump to sign executive order aimed at cracking down on Facebook and Twitterhttps://www.cnbc.com/2020/05/28/trump-to-sign-executive-order-aimed-at-cracking-down-on-facebook-twitter.html

The law enforcement backdoor debate continueshttps://www.helpnetsecurity.com/2020/05/26/backdoor-encryption/

OWASP Top 10 2020 Data Analysis Planhttps://owasp.org/www-project-top-ten/

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The post First Amendment Rights and Twitter, Encryption Backdoors appeared first on Shared Security Podcast.

Recent Articles By Author

*** This is a Security Bloggers Network syndicated blog from Shared Security Podcast authored by Tom Eston. Read the original post at: https://sharedsecurity.net/2020/06/01/first-amendment-rights-and-twitter-encryption-backdoors/?utm_source=rss&utm_medium=rss&utm_campaign=first-amendment-rights-and-twitter-encryption-backdoors

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First Amendment Rights and Twitter, Encryption Backdoors - Security Boulevard

On January 1, 2020, California Assembly Bill 5 (AB 5) went into effect, drastically curtailing Californians freedom to work on their own terms as freelancers. The law, which was written by the AFL-CIO, presents many freelancers in the state with only two options: find apermanent employer willing to hire you or find anew line of work. Ostensibly designed to help Uber and Lyft drivers, the law has drastically affected millions of workers in the state. Recently, aballot initiative creating an exception for Uber and Lyft qualified for the November election.

The law doesnt apply to everyone evenly, though. Among alabyrinthine mishmash of exceptions is one for contracts for professional services. This exception applies to 11 different types of services, the majority of which concern speech protected by the First Amendment. But the limitations placed on the various categories of speech are unequal. While freelancers may provide fine art, marketing, and graphic design services without limitation, freelance journalism and photojournalism (newspaper cartoons included) are subject to unique limitations. Workers cannot make more than 35 submissions per publisher per year that qualify as journalism or photojournalism, and freelance photojournalists may not make any video submissions whatsoever.

The American Society of Journalists and Authors (ASJA) and the National Press Photographers Association (NPPA) filed suit challenging the law, and for good reason: subjecting categories of speech such as journalism and photojournalism to harsher restrictions than services such as marketing or fine art is not only arbitrary and harmful, its unconstitutional.

The case is now before the Ninth Circuit where Cato, joined by the Reason Foundation and the Individual Rights Foundation, has filed abrief in support of the journalists. We argue that the trial courts decision to dismiss the case is inconsistent with the First Amendment and with the Supreme Courts decision in Reed v. Town of Gilbert.

Story continues

In Reed, the Court made clear that laws restricting speech on the basis of content are presumptively unconstitutional and must clear the high bar of strict scrutiny review. Contentbased restrictions are those that require examining the content of acommunication. Alaw banning certain song lyrics is content based, but alaw banning playing music too loud is not. California wants to evade strict scrutiny by using the complexity of AB 5to its advantage, obfuscating the way the law works in an attempt to change acontentbased restriction into a speakerbased, contentneutral one. As Reed made clear, however, speakerbased restrictions can still be content based and terming arestriction on speech as speakerbased is frequently acover for controlling speech based on content. Such is the case here.

What distinguishes speech categorized as marketing or fine art from speech categorized as journalism or photojournalism? The content, of course. And when alaw targets speech based on content, the law is unambiguous: strict scrutiny applies. Californias argument is inconsistent with Reed, Reeds applications in courts around the country, and with its own law. We are therefore asking the Ninth Circuit to join its sister circuits in affirming that Reed is the law of the land and grant journalists their day in court.

This article by Trevor Burrus first appeared in CATO on May 26, 2020.

Image: Reuters.

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Californias AntiFreelancer Law Violates the First Amendment - Yahoo News

In a recent decision from the Southern District of New York, Judge George B. Daniels held that the strong First Amendment interests in protecting free artistic expression warranted summary judgment that Activision Blizzards use of Humvee vehicle models in the blockbuster Call of Duty videogames was not a violation of the Lanham Act. Because the inclusion of Humvees represented genuine artistic expressionspecifically, the creation of a more realistic depiction of the armed forcesand was not in service of misappropriation or otherwise misleading as to the source of the game, the defendants were entitled to the dismissal of all of the plaintiffs claims.

Background

In AM General LLC v. Activision Blizzard, Inc. et al. (No. 17-cv-8644), Plaintiff AM General (AMG) had been the contract supplier of Humvees to the armed forces since the early 1980s, during which time they had seen ubiquitous use and deployment among U.S. military land forces. Since the 1990s, AMG had granted a few licenses to use the Humvee trademark in connection with products and services including at least some toys and at least four video games, although its primary business line remained the manufacture and sale of physical automobiles.

Defendant Activision Blizzard published the extremely popular Call of Duty videogame franchise, a series of military-styled first person shooters. In nine of these games, Humvees were depicted for various durations, at times requiring the player to interact with or ride in a Humvee, and with Humvees shown in promotional trailers and strategy guides. Following the 2016 release of Call of Duty: Modern Warfare Remastered, AMG brought suit in November of 2017 for trademark and trade dress infringement under the Lanham Act and various substantially related claims under the Lanham Act and parallel state laws.

The Case

At summary judgment, Activision Blizzard argued that the strong First Amendment interest in protecting free expression warranted dismissal of AMGs claims. The Court noted that there was a long line of precedent, beginning with Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), that weighed strongly in favor of protecting works of artistic expression against Lanham Act claims. (slip op. at 7). Rogers generally precluded the application of the Lanham Act to works of artistic expression where the use of the trademark has any artistic relevance to the underlying work whatsoeverso long as the artistically relevant use of the trademark did not explicitly mislead[] as to the source or the content of the work. (Id.)

Examining past cases implicating Rogers, the court held that a Lanham Act violation would not be supported against countervailing First Amendment concerns by the mere existence of a likelihood of confusion, but rather only in circumstances where the evidence for a likelihood of confusion was compelling, such as where undertaken for the purposes of misappropriation. The court further observed that the requirement that an artistic use of a mark have artistic relevance was not the same thing as being artistically required or obligatorythe use had to be in artistic good faith but there was no but for requirement that the use be indispensable.

The court found that Activision Blizzards interest in presenting military verisimilitude easily met the low bar for artistic relevance. The Court further found that, in view of the Polaroid factors [Polaroid v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961)], Activision Blizzards use of Humvees was not explicitly misleading. Despite some survey evidence showing potential confusion as to whether AMG had approved the use of Humvees in the game, there was ultimately little to suggest that Activision Blizzards use was of an appropriative rather than artistic character. In particular, the fact that AMG was a manufacturer of automobiles while Activision Blizzard produced videogames weighed heavily against any compelling finding of confusion. The Court was unmoved by AMGs argument that its licensing activities created an overlap in the market segments for Activision Blizzard and AMG, due to the sporadic and marginal nature of such licensing relative to AMGs primary business of making and selling automobiles. (slip op. at 14).

Summing up its analysis, the Court held that enhanc[ing] the games realism was a sufficient rationale to establish that the use of Humvees was an integral element of the games artistic expression under the Rogers line of cases. (slip op. at 19). That the art in question was commercially sold did not negate the protection afforded it under the First Amendment. Activision Blizzard was thus entitled to summary judgment against all of AMGs claims.

Takeaways from AMG v. Activision Blizzard

AMG v. Activision Blizzard is broadly helpful to both amateur and commercial producers of art who wish to include potentially trademarked material as part of a broader commitment to realism. Where a marks presence, even if not necessarily required, is so entwined with a realistic portrayal of artistic subject matter (as with Humvees and the military) that its use can be readily characterized as in good faith, AMG suggests that the use of the mark would generally be protected.

How far the holding of AMG extends, however, is not entirely clear with respect to marks for which licensing represents a more common and widespread business model than the sporadic and marginal business lines of the plaintiff in AMG. The AMG court put significant weight on the fact that there was no evidence of significant market overlap or direct competition between the plaintiffs automobiles and Activision Blizzards games, and thus no compelling case for consumer confusion in the context of such wildly different goods. The issue would, presumably, be more difficult to resolve in those instances in which a plaintiffs mark had a longer or more substantial history of being licensed in the same field in which an accused infringer sought to establish a protected use of that mark.

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First Amendment May Protect Use of Trademarks As Artistic Expression - JD Supra

Introduction

On Wednesday, White House press secretary Kayleigh McEnany told reporters that President Donald Trump intended to sign an executive order on Thursday regulating social media companies. This move comes after Twitter placed a fact-checking label on one of President Trumps tweets concerning voting by mail. While the digital age has led to an explosion of speech of many different forms and opinions, social media platforms have faced criticisms from both the left and the right for the decisions they make regarding what content to leave up, take down, or otherwise moderate. Nevertheless, those that value freedom of expression or see the benefits technology brings should be concerned about calls for government regulation of private actors in this area.

Free Speech Rights and Regulation of Social Media

Critics of content-moderation decisionsto remove certain users or content or add warnings or fact checks to this informationquestion if platforms decisions to do so violate Free Speech rights. These internet platforms should be neutral to all speech and such decisions are currently biased, the argument goes. But these claims misunderstand the constitutional claims involved with violations of the First Amendment.

First, with each new content-moderation controversy, it has been pointed out that these are private platforms. First Amendment speech rights restrain government, not private actors, when it comes to the regulation of speech. Therefore, the First Amendment doesnt directly implicate private actors such as social media companies.

Second, government regulation of private platforms, such as those regulations proposed in the executive order, could raise serious First Amendment concerns. Platforms themselves have First Amendment speech rights, and they exercise these when they themselves speak, such as by attaching a fact check to user-generated content. As Judge Andrew Napolitano explained on Fox News, The president can say what he wants about Twitter and they can say what they want about him. Government attempts to control or regulate such decisions does not further Free Speech, but rather undermines the Free Speech rights of the platforms themselves.

It should be concerning how these regulations could spill over into other expressions beyond social media. While the executive order may only concern the regulation of social media platforms, it could set a dangerous precedent if upheld that could allow future government intervention into other speech rights. Particularly given a vague standard or catchall such as otherwise objectionable, different officials could weaponize such terms to remove unpopular opinions from the other side.

Case Law Does Not Support Government Intervention Into Decisions Concerning Online Speech

The expected executive order argues that social media platforms serve as the functional equivalent of a traditional public forum. This argument has been repeatedly rejected by the courts.

These arguments for the executive order rely on Packingham v. North Carolina, where the Supreme Court held that state actors could not impose restrictions on access to internet platforms. But since Packingham, courts have repeatedly stated that private social media companies are not required to apply First Amendment Free Speech standards to their own content moderation decisions. Both California state and federal courts have rejected such claims in cases brought by Prager University after YouTube placed some of its videos in restricted mode and limited its advertising. Earlier this week in a lawsuit brought by activist Laura Loomer and FreedomWatch, the U.S. District Court for the District of Columbia ruled that private social media platforms were not places of public accommodation as defined by the DC Human Rights Act, and thus that arguments against private moderation regarding requirements for places of public accommodations failed. Both federal and state courts have come to the same conclusion for a variety of platforms following decisions to ban or remove content.

By carrying others speech, social media platforms are not transformed into a public square. This principle has been applied to traditional media as well as to new digital platforms. Cases surrounding libraries, bookstores, and wire services reached similar conclusions in a pre-digital age. The protection of platforms regarding their decisions about what content to allow reflects general legal principles and is not a special handout. Additionally, in Manhattan Communication Access Corp. v. Halleck, the Supreme Court held, in a decision written by Justice Brett Kavanaugh, that a privately operated public access television station was not a public forum bound by First Amendment standards. This case is likely more legally analogous to the current situation concerning social media platforms than Packingham is.

Fairness Would Actually Harm Conservative Voices Online

Many of the calls to regulate social media from the right call that platforms need to be accountable and fair. But requiring neutrality or removing Section 230 could result in a new version of the Fairness Doctrine and actually make it harder for new voices to be heard online.

Section 230, a law that limits the liability of an online platform for content created by users and enables it to make moderation decisions regarding such content, makes it easier for new platforms to emerge. In doing so, it provides speakers with new ways to express themselves or allows for a set of rules that better fits their preferences. For example, when it comes to fact-checking political speech, Facebook and Twitter have taken different approaches, as seen in comments from Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey. But a protection from liability and the ability to make different content-moderation decisions doesnt just protect the giant incumbents; it also allows new platforms and communities to develop without the risk that they get crushed before they can take hold. This can help expand speech to speakers that would have otherwise been left without a voice and creates a marketplace of ideas. As senior editor of The Dispatch David French wrote in Time regarding what Section 230 has allowed, While different sites have different rules and boundaries, the overall breadth of free speech has been extraordinary. Think about all the ways we have continued to feel connected by user-generated content during the current pandemic. Without Section 230, platforms would either be forced to engaged in constant moderation that would likely silence many legitimate discussions or engage in no moderation at all, resulting in the internet being a place not many people would enjoy.

But should the government require platforms rules to be fairly enforced? In the past this was tried with more traditional media under the Fairness Doctrine. The Fairness Doctrine obliged those licensed by the Federal Communications Commission (FCC) to ensure that coverage included opposing views by interested citizens. This rule resulted in radio and later television stations being required to carry certain responses and information, giving rise to concerns that the doctrine could chill speech and violate First Amendment rights. The FCC during the Reagan Administration removed the rule and this change in part allowed for the rise of conservative talk radio.

Requiring neutrality or removing Section 230 could backfire on the conservative voices that feel liberal platforms are biased against them. As Tech Freedoms Ashkhen Kazaryan explained, if platforms must be neutral to enjoy First Amendment protectionwebsites tailored for specific populations cease to exist.This decline in diversity would be concerning for both conservative voices that might want a more family-friendly experience and those in communities that may face persecution or discrimination such as the LGBTQ community. Fairness may sound like an ideal, but government-imposed neutrality would likely result in more silence and not more voices.

Conclusion

Government threatening to regulate online speech should be concerning regardless of which side of the aisle it comes from. The internet has enabled citizens to hold the government accountable, facilitated communication and creation in innovative ways, and resulted in more opportunities for expression than ever before. Many of the rationales behind such calls misunderstand the fundamentals of free speech and could damage founding American values as well as the very voices they claim to protect.

Read more:

Content Moderation, Section 230, and The First Amendment - AAF - American Action Forum

The American Civil Liberties Union of Louisiana on Friday issued a warning to state and local law enforcement to respect the First Amendment rights of protesters.

As protests break out nationwide over the death of George Floyd in Minneapolis, the organization reminded officials of law enforcement's pledge to respect the right to peacefully protest as part of a 2016 settlement.

That year, Louisiana and Baton Rouge law enforcement agencies agreed to settle a civil rights lawsuit that stemmed from Alton Sterling's death. Sterling was shot and killed by a Baton Rouge Police Officer. In that settlement signed by law enforcement and civil rights advocates, law enforcement agreed to recognize the rights of all people to "recognize the rights of all persons to assemble and engage in the public for the purpose of peaceful public discourse and protest."

"The protests in Minnesota and across the country are a direct response to the systemic violence and racial terror that police have perpetrated in Black communities for centuries," said Alanah Odoms Hebert, ACLU of Louisiana executive director. "Just weeks from the anniversary of Alton Sterling's brutal killing at the hands of Baton Rouge police, the cold-blooded murder of George Floyd as he desperately cried for help is a reminder of the deadly toll that systemic racism takes on our communities each and every day. These officers must be held accountable - but much more than that, every one of us has an obligation to address the deeply-rooted racism that pervades our institutions and poisons our society. As we stand in solidarity with all those mourning and demonstrating against George Floyd's murder, we remind state and local law enforcement of the commitment they made to respect protesters' First Amendment rights and avoid excessive or militarized responses to peaceful protest activity."

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ACLU issues warning to police to protect First Amendment rights of protesters - KATC Lafayette News

Jack Greiner Published 9:25 a.m. ET May 27, 2020 | Updated 12:32 p.m. ET May 28, 2020

Jack Greiner, attorney for Graydon(Photo: Provided, Provided)

The Washington League for Increased Transparency and Ethics (Washlite), a public interest group in Washington state is suing Fox News under the Washington Consumer Protection Act for its alleged campaign of deception and omission regarding the danger of the international proliferation of the novel Coronavirus.

According to the complaint, Fox knowingly disseminated false, erroneous, and incomplete information . . . , [which] created an ongoing uncertainty amongst some members of the public as to the dangers of the virus and the rapidity with which the virus spreads.

Not surprisingly, Fox filed a motion to dismiss, arguing that the First Amendment prohibits the claim. The response from Washlite is interesting.

Rather than arguing that there is some particular exception here that would allow a court to find Fox liable despite the First Amendment, Washlite swings for the fences and contends that the First Amendment doesnt even apply to a cable television programmer/content provider . . . using a system owned and operated by a cable operator. It also contends that cable television does not stand on equal footing as print media or broadcast television.

That seems like a pretty strong and misguided contention. The Supreme Court has applied the First Amendment to video games, so it certainly has not confined freedom of speech to just traditional outlets.

To support its position, Washlite cited a Supreme Court case where three Justices wrote that cable programmers using a private cable system owned by another have no independent constitutional right to speak through the cable medium. Based on that limited ruling, Washlite contends a cable programmer has no First Amendment rights. That is, I think, a bit of an overstatement.

What the Justices were saying in that case was more limited. The ruling merely stands for the notion that [l]ike a free-lance writer seeking a paper in which to publish newspaper editorials, a programmer is protected in searching for an outlet for cable programming, but has no free-standing First Amendment right to have that programming transmitted. All this means is that a programmer cant assert the First Amendment to force someone to carry the programming. But thats a different issue than whether a cable programmer, who has found an outlet, can be punished for the programming. And thats the question in this case.

Its understandable that people may be frustrated with anyone who spreads misinformation about a deadly pandemic. But thats the thing about the First Amendment. It protects the right of a speaker even an ignorant and misinformed speaker to say their piece.

As an update, on May 27, after this column was written, the Washington Superior Court granted Foxs motion to dismiss, agreeing that Fox is protected by the First Amendment, and it bars this suit.

Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

Read or Share this story: https://www.cincinnati.com/story/money/2020/05/27/strictly-legal-fox-news-entitled-first-amendment-protection/5258511002/

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Strictly Legal: Is Fox News entitled to First Amendment protection? - The Cincinnati Enquirer

Jim Turner, News Service of Florida Published 1:53 p.m. ET May 29, 2020

Southwest Florida could be in line for a new toll road that would connect Polk County, south of Orlando, to Collier County. Naples Daily News

TALLAHASSEE --- Open government advocates want the brakes applied to upcoming webinars about controversial toll-road projects, contending that more-inclusive in-person meetings should be held as the state reopens amid the coronavirus pandemic.

While a state Department of Transportation spokeswoman said the webinar plans will continue, the First Amendment Foundation also questioned the legality of six webinars already held by task forces working on the projects, which would stretch from Collier County to the Georgia border.

The webinars are a poor substitute for the kind of government that is required by Florida's Sunshine Law, which does apply to the M-CORES task force meetings, First Amendment Foundation President Pamela Marsh wrote Thursday to Transportation Secretary Kevin Thibault, using an acronym for the projects that the state has dubbed the Multi-use Corridors of Regional Economic Significance.

Marsh wrote that the webinars should be postponed(and preferably canceled) until everyone interested in attending can be accommodated. Marsh added that state administrative rules require meetings to be halted if technical problems develop with the communications network, which she said occurred during each meeting.

More: Proposed toll road from Polk to Collier draws concerns from some environmental groups

More: Roads taking a toll on task force members as some struggle to understand need, origination

More: Naples community provides input on proposed toll road from Polk to Collier

All portions of the Sunshine Law continue to apply even during this horrible pandemic, Marsh stated. No part of the law has been suspended or modified as applied to state agencies. As a result, I respectfully request that FDOT exercise patience, cancel any and all M-CORES task force meetings, and reschedule the meetings only when members of the task force and Florida citizens can fully participate in-person and by all feasible means.

Marsh said in an email to The News Service of Florida on Friday that the intent isnt to make any threats at this time as she hopes FDOT will make a change for greater public participation.

(Disclosure: The News Service is a member of the First Amendment Foundation.)

Lawmakers last year approved a measure that set the stage for the projects, which involve extending Floridas Turnpike from Wildwood to connect with the Suncoast Parkway; extending the Suncoast Parkway north to the Georgia border; and building a toll road between Polk and Collier counties.

Webinars are planned: Wednesday for the turnpike extension; June 9 for the northern extension of the Suncoast Parkway; and June 11 for the project between Polk and Collier counties.

Department of Transportation spokeswoman Beth Frady said Thursday the webinars are not a replacement for task-force meetings but additional opportunities for task force members to gather input during the pandemic.

These virtual meetings have made it so anyone from South Florida to North Florida can attend and be heard, and we would expect the First Amendment Foundation to celebrate this additional transparency while we work to keep our fellow citizens safe, Frady said in an email.

Frady added that the department plans to hold in-person meetings as soon as it is safe to do so. But she also referenced state laws, which allow agencies to conduct public meetings by video.

To date, these webinars have included participation from more than 1,700 attendees, with more than 120 people providing public comment to the task forces during the designated comment period, Frady wrote. This is a higher level of participation than we have received during the in-person task force meetings, demonstrating how technology can facilitate participation in a meeting by members of the public who are not able to attend in person.

The proposed roads, signed into law by Gov. Ron DeSantis in 2019, are a priority of Senate President Bill Galvano, R-Bradenton, and have been backed by groups including the Florida Chamber of Commerce, Associated Industries of Florida, the Florida Ports Council and the Florida Trucking Association. Supporters say, in part, that the projects will help prepare for future growth and aid in disaster evacuations.

Environmentalists have vowed to wage war against the roads, which they maintain will devastate large rural and natural tracts of land.

Annual funding for the work is expected to reach about $140 million.

Among bills now before DeSantis are a proposal (HB 969) to set aside up to $5 million a year for broadband services to accompany the road corridors and a proposal (SB 7018) to direct the Department of Transportation to plan and build staging areas for emergency response along the turnpike system, with a priority in counties with a population of 200,000 or less in which a multi-use corridor of regional significance is located. Those bills were passed during this years legislative session.

An initial timeline called for the task forces to provide final reports by October, with construction expected to begin before the end of 2022. However, because of COVID-19, the deadline for the task-force reports has been pushed back to Nov. 15.

Read or Share this story: https://www.naplesnews.com/story/news/2020/05/29/first-amendment-foundation-calls-florida-dot-stop-toll-road-webinars/5284266002/

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First Amendment Foundation calls for Florida DOT to stop toll road webinars - Naples Daily News

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Editorial Page Editor Jay Jochnowitz was recognized with the First Amendment Award in the New York State Associated Press Association 2019 awards.

Times Union Senior Editor Brendan J. Lyons in the Assembly Chamber in Albany, NY. (John Carl D'Annibale/Times Union)

In the 2019 New York State Associated Press Association awards, Copy Editor Joseph Stalvey won First Place in Headline Writing for this headline from the Nov. 21, 2019 Preview section.

In the 2019 New York State Associated Press Association awards, Copy Editor Joseph Stalvey won First Place in Headline Writing for "Cannabis Kin Generating its Own Buzz" in the New York State Associated Press Association 2019 awards.

In the 2019 New York State Associated Press Association awards, Managing Editor Features/Sports Gary Hahn won Second Place in Headline Writing for this July 25, 2019 Preview cover headline.

In the 2019 New York State Associated Press Association awards, Managing Editor for Features and Sports Gary Hahn won Second Place in Headline Writing for "Fair, but Not Equal" in the New York State Associated Press Association 2019 awards.

Data Journalist and Online Producer Cathleen F. Crowley swept the Data Visualization category taking both First and Second Places for "Horse Death Tracker" and "School Debt" in the New York State Associated Press Association 2019 awards. And won a Second Place in Digital Storytelling with Senior Editor for State and Investigations Brendan J. Lyons and now-retired Executive News Editor and Online Producer Joyce Bassett. The team won Second Place in Digital Storytelling for "Raniere Stands Alone."

Executive News Editor and Online Producer Joyce Bassett, who is now retired and writing the weekly column "All In," won a Second Place in Digital Storytelling with Senior Editor for State and Investigations Brendan J. Lyons and Data Journalist and Online Producer Cathleen F. Crowley. The team won Second Place in Digital Storytelling for "Raniere Stands Alone."

Times Union Editor and Vice President Casey Seiler won First Place in Column in the 2019 New York State Associated Press Association awards. These are the columns that were submitted for the judges' consideration: "It didn't have to happen," "Anatomy of a total tank job" and "Lets not forget the enablers."

In the 2019 New York State Associated Press Association awards, Design Director Tom Palmer won First Place in News Full Page Design for this Dec. 19, 2019 A1.

Design Director Tom Palmer won First Place in News Full Page Design for his A1 page "Impeached" in the 2019 New York State Associated Press Association awards competition.

Photo Editor Will Waldron won First Place in Spot News Photo with this image in the 2019 New York State Associated Press Association awards. Here's the original caption: Skyelar Eriole, 5, one of the displaced residents of a Georgetta Dix Plaza fire, recalls how she escaped from the blaze on Wednesday morning, March 27, 2019, in Schenectady, N.Y. A morning fire struck two houses and left at least nine adults and children homeless in Hamilton Hill. (Will Waldron/Times Union)

Photo Editor Will Waldron won First Place Spot News Photo for "Silent Scream" in the 2019 New York State Associated Press Association awards.

Page Designer Tyswan Stewart took Second Place in Features or Sports Full Page Design with this Aug. 15, 2019 Preview cover in the 2019 New York State Associated Press Association awards.

Page Designer Tyswan Stewart won Second Place in Feature or Sports Full Page Design for his page "Woodstock at 50" in the New York State Associated Press Association 2019 awards.

In the 2019 New York State Associated Press Association awards, Page Designer Jeff Boyer won Second Place Illustration or Graphic for the illustration with this April 8, 2019 illustration with the editorial, "Nothing to cheer about."

Page Designer Jeff Boyer won Second Place in Illustration or Graphic for "State Tests" in the New York State Associated Press Association 2019 awards.

Former Capitol Reporter David Lombardo, who is now host of WCNY's Capitol Pressroom, won Second Place Podcast for "Tales from the Coup" in the 2019 New York State Associated Press Association awards.

ALBANY The Times Union celebrated Thursday on learning its staff members walked away from the annual New York State Associated Press Association contest with two statewide awards and almost a dozen other honors for its work.

Leading the way in the wins for 2019 work were Editorial Page Editor Jay Jochnowitz, who was recognized with the First Amendment Award, and Senior Editor for State and Investigations Brendan J. Lyons, who won the Michael Hendricks Journalist of the Year Award.

In its circulation class, which includes newspapers with an assessed weekly circulation of 250,000 to 999,999, Times Union staff won another 11 awards.

The range of these honors is a sign of the quality of the journalism the Times Union provides to its readers, said Casey Seiler, the papers editor and vice president. I'm especially pleased to see statewide recognition for the work of Brendan J. Lyons, one of the most dogged investigative journalists in a state with a lot of them, and Jay Jochnowitz, whose opinion writing gives the paper its fierce conscience.

In a challenging time for the business of journalism, the work of those recognized by the state AP this year shows why the Times Union maintains its vital role in the life of the Capital Region, said George Hearst III, the Times Union's publisher and CEO.

In its circulation class, the Times Union staff swept the Headline Writing category with Copy Editor Joseph Stalvey winning First Place for "Cannabis Kin Generating its Own Buzz" and Managing Editor for Features and Sports Gary Hahn winning Second Place for "Fair, but Not Equal."

Lyons won another award with Data Journalist and Online Producer Cathleen F. Crowley and now-retired Executive News Editor and Online Producer Joyce Bassett, who now writes the weekly "All In" column for the paper's sports department. The team won Second Place in Digital Storytelling for "Raniere Stands Alone," a preview of the trial of NXIVM's Keith Raniere.

Crowley swept the Data Visualization category, taking both First and Second Places for "Horse Death Tracker" and "School Debt," respectively.

Seiler won First Place in Column Writing for a package of three examples of his work: "It didn't have to happen," "Anatomy of a total tank job" and "Lets not forget the enablers."

Design Director Tom Palmer won First Place in News Full Page Design for his A1 page "Impeached."

Photo Editor Will Waldron won First Place Spot News Photo for "Silent Scream," an image of a young girl reacting to a house fire at her Schenectady home.

Page Designer Tyswan Stewart won Second Place in Feature or Sports Full Page Design for his page "Woodstock at 50."

Page Designer Jeff Boyer won Second Place in Illustration or Graphic for "State Tests."

And former Capitol Reporter David Lombardo, who is now host of WCNY's Capitol Pressroom, won Second Place Podcast for "Tales from the Coup," his multi-part narrative on the 2009 Republican takeover of the state Senate.

For the First Amendment Award, presented for a distinguished contribution to freedom of the press, the Times Union submitted a collection of editorials Jochnowitz wrote. Judges look for the submission that best exemplifies the spirit and intent of the First Amendment, including how the submission demonstrates a news organization's efforts to fulfill its public service role to help ensure an unrestricted flow of information vital to a free society.

The following editorials comprised the submission from Jochnowitz: "Kill this secret arrest bill," "More sunshine not less," "Secrets within secrets," "Brutality's enablers," "Olympic secrecy," "Police secrecy must end," "Protect young journalists," "Not a private matter at all," "Public information, period," "NYISO's dark side," and "Redemption, not revision."

"I can't adequately express how gratifying it is to be recognized by my peers with an award that goes to the heart of so much of what journalism is about freedom of the press, freedom of speech, and the need to hold government accountable," Jochnowitz said. "While this is an individual award, I want to stress that the work I do on the opinion side would not be possible without all the work done by my colleagues, from the reporters and editors fighting every day to get the information I write about to a publisher who is fully committed to the Times Unions mission as a news organization."

The Michael Hendricks Journalist of the Year Award, in recognizing the work of a New York journalist, honors former Associated Press News Editor Michael Hendricks, who was dedicated to helping journalists get a start in this business. In selecting Lyons, judges looked at the quality and variety of his work samples, the impact of his work in the community, and the conditions under which he worked.

"The work of journalists has never been more important," Lyons said. "I appreciate this honor from the Associated Press. I am especially grateful to be surrounded at the Times Union by so many hard-working journalists who take seriously their duty to seek the truth, be fair and keep readers informed of the news that matters to them."

These were the submissions from Lyons considered by the judges: "McLaughlin: I'm the 'boss' of Rensselaer County," "School janitor with hidden past as priest left wake of abuse," "Inspector general probed ethics panel's alleged leak to Cuomo," "'Ghost guns' becoming more common across New York," and "Records detail Rikers inmates' troubles at Albany County jail."

The state AP association includes member newspapers as well as television and radio stations from across New York state. In announcing the winners, George Bodarky, who is president of the New York State Associated Press Association and News Director for WFUV, noted that 1,300 entries were submitted across the print and broadcast categories. In years past, the association would invite winners to a dinner in early June to celebrate the wins. In light of the pandemic, the association's board of directors voted to forgo the event this year.

"We hope you have a grand time celebrating the honors with your staff," Bodarky said in a letter to the winning organizations. "In the meantime, stay safe while you continue to produce amazing journalism covering one of the biggest stories of our lifetime from the state in the center of it."

Read more from the original source:

Times Union takes First Amendment and Journalist of the Year, 11 other awards in statewide contest - Times Union

This is one of a series of blog posts about President Trump's May 28 Executive Order. Other posts are here, here, and here.

The inaptly named Executive Order on Preventing Online Censorship (EO) seeks to insert the federal government into private Internet speech in several ways. Section 3 of the EO threatens to leverage the federal governments significant online advertising spending to coerce platforms to conform to the governments desired editorial position.

This raises significant First Amendment concerns.

The EO provides:

Sec. 3. Protecting Federal Taxpayer Dollars from Financing Online Platforms That Restrict Free Speech. (a) The head of each executive department and agency (agency) shall review its agencys Federal spending on advertising and marketing paid to online platforms. Such review shall include the amount of money spent, the online platforms that receive Federal dollars, and the statutory authorities available to restrict their receipt of advertising dollars.

(b) Within 30 days of the date of this order, the head of each agency shall report its findings to the Director of the Office of Management and Budget.

(c) The Department of Justice shall review the viewpoint-based speech restrictions imposed by each online platform identified in the report described in subsection (b) of this section and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.

The First Amendment is implicated by this provision because it is, at its essence, the government punishing a speaker for expressing a political viewpoint. The Supreme Court has recognized that "[t]he expression of an editorial opinion . . . lies at the heart of First Amendment protection." The First Amendment thus generally protects speakers against enforced neutrality.

Although the government may have broad leeway to decide where it wants to run its advertisements, here it seems that the government would otherwise place advertisements on these platforms but for the sole fact that it dislikes the political viewpoint reflected by the platform's editorial and curatorial decisions. This is true regardless of whether the platform actually has an editorial viewpoint or if the government simply perceives a viewpoint it finds inappropriate.

This decision is especially suspect when the platforms speech is unrelated to the advertisement or the government program or policy being advertised. It might present a different situation if the message in the governments advertisement would be undermined by the platforms editorial decisions, or, if by advertising, the government would be perceived as adopting the platforms viewpoint. But neither of those is contemplated by the EO.

The EO thus seems purely retaliatory, and designed solely to coerce the platforms to meet the governments conception of acceptable neutralitya severe penalty for having a political viewpoint. The goal of federal government advertising is to reach the broadest audience possible: think of the Consumer Product Safety Commissions Quinn the Quarantine Fox ads, or the National Park Services promotions about its units. This advertising is not a reward for the platform for its perceived neutrality. Its a service to Americans who need vital information.

In other contexts, the Supreme Court has made clear that the governments spending decisions can generally not be the product of invidious viewpoint discrimination. The court has applied this rule to strike down a property tax exemption that was available only to those who took loyalty oaths, explaining that the deterrent effect is the same as if the State were to fine them for this speech. And the court also applied it when a county canceled a contract with a trash hauler who was a fervent critic of the countys government. Even when the court rejected a First Amendment challenge to a requirement that the National Endowment for the Arts consider general standards of decency and respect for the diverse beliefs and values of the American public as one of many factors in awarding arts grants, it emphasized that the criterion did not give the government authority to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, and funding decisions should not be calculated to drive certain ideas or viewpoints from the marketplace.

By denying ad dollars that it would otherwise spend solely because it disagrees with a platforms editorial views, or dislikes that it has editorial views, the government violates these fundamental principles. And this in turn harms the public, which may need or want information contained in government advertisements.

Excerpt from:

Trump's Executive Order Threatens to Leverage Government's Advertising Dollars to Pressure Online Platforms - EFF

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The First Amendment to the United States Constitution

On June 21, 1788, the Constitution became the framework of the government of the United States of America. Three and a half years later on December 15, 1791,10 of the first12 proposed amendments to the Constitution were ratified and became known as the Bill of Rights. The First Amendment guarantees some pretty fundamental rights such as your right to free speech and your right to worship as you choose without government interference.

The recent COVID-19 crisis has seen state and local governments all across the countrytrample all over your rights. They interfered with your right to freely practice your religion, first by closing houses of worship and then by imposing strict limitations on attendance.

The First Amendment does not state that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" unless there is a virus and the governor and the mayor decide you shouldn't go to church. It doesn't say that anywhere.

On Friday, a sharply divided U.S. Supreme Court, in a very controversial 5-4 decision that was overshadowed by the anarchism and chaos that has gripped our major cities, ruled that government can impose limits on crowd size at our houses of worship during this crisis. Chief Justice John Roberts wrote that government restrictions "appear consistent" with the First Amendment. Roberts further stated that similar or more severe limits apply to concerts, movies, and sporting events where large groups of people gather in close proximity for extended periods of time.

The Chief Justice needs a road map to common sense if he cannot figure out the difference between a desire to attend a concert, movie or sporting event, and the need for Americans to practice their religion. Many folks turn to their religion during times of crisis and this is certainly one of those times.

Justice Roberts and the four liberal appointees to the U.S. Supreme Court got this one wrong and will answer to a higher authority for this misstep.

Barry Richard is the host of The Barry Richard Show on 1420 WBSM New Bedford. He can be heard weekdays from noon to 3 p.m. Contact him at barry@wbsm.com and follow him on Twitter @BarryJRichard58. The opinions expressed in this commentary are solely those of the author.

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SCOTUS Gets It Wrong on Church Limits [OPINION] - wbsm.com

May 31, 2020 - SACRAMENTO, Calif. Federal, state and local law enforcement partners join together to condemn the death of George Floyd in Minneapolis and offer sincere condolences to his family and colleagues, U.S. Attorney McGregor W. Scott, FBI Special Agent in Charge Sean Ragan, Sacramento County District Attorney Anne Marie Schubert, Sacramento County Sheriff Scott Jones, and Sacramento Chief of Police Daniel Hahn announced.

Mr. Floyds death is being addressed through our criminal justice system, which is moving quickly. The state prosecutor has brought murder charges against a former Minneapolis police officer. As United States Attorney General Barr announced on May 29, the Department of Justice, including the FBI, is also conducting an independent investigation to determine whether any federal civil rights laws were violated.

Peaceful protest is a time-honored tradition in our country, and we in law enforcement strive to protect these important First Amendment rights. The majority of those protesting are doing so peacefully. But when protests turn violent, this endangers the community, and law enforcement must act to protect the community. As a civilized society based upon the rule of law, we will not tolerate violence, anarchy or chaos that threatens the safety of the community.

Federal, state, and local law enforcement will continue to work together to protect the communitys First Amendment rights and to protect the community from violence and lawlessness. Federal and state felony statutes may apply.

As part of the community, we share the concerns about George Floyds death, said U.S.Attorney Scott. We also recognize that his death comes at a time when we are also fighting, as a nation, an unprecedented pandemic that has taken its toll across our country and our District. Together with state and local law enforcement, we have reached out to our community leaders to address the real and legitimate concerns about what happened to Mr. Floyd and to identify positive steps we can take going forward. Please join me in a call for unity and peace, not violence, as we work together during this difficult time.

The FBI Sacramento Field Office is deeply committed to protecting the civil rights of all people within the 34 California counties we serve, said Special Agent in Charge Sean Ragan.The FBI steadfastly investigates all allegations involving the deprivation of civil rights, including color of law violations official actions taken by persons acting under the authority of local, state, federal, or tribal laws to willfully deprive someone of a right or privilege secured or protected by the Constitution or laws of the United States. No one is above or beyond the law. The communities we serve can depend on the FBI to methodically collect facts in order to provide unbiased and independent investigative results so prosecutors can make a charging decision.Source: DOJ

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Federal, California and Local Law Enforcement's Statement on the Death of George Floyd and Riots Says They Will Continue to Work Together to Protect...

Home law First Amendment Legal Expert Floyd Abrams on Trumps Chilling Executive Order Designed...

Floyd Abrams is one of the countrys leading legal experts on the First Amendment. Hes also the father of journalist Dan Abrams. Floyd spoke today on Dans SiriusXM radio show regarding Donald Trumps new Executive Order designed to kill free speech.

Trump is incensed by Twitter fact checking his inane, crazy and dangerous Tweets regarding mail-in ballots for voting. Trump is trying to scare his followers into believing that mailed ballots arent safe and will be tampered with. This isnt true, of course, but Trumps sadly illiterate and easily impressionable base can be told almost anything including the sky is falling and theyd believe it.

Trumps Executive Order is only about him, and his petty differences with Twitter. But it threatens the First Amendment, which hes never read.

Says Floyd Abrams:

The First Amendment issue is: can you shut up the social media entities when they engage in what they view as fact-checking? And I dont think you can. Im confident that that would violate the First Amendment. And, at the end of the day, thats what this is all about. No matter what the results are of any internal studies. What is sought here by the president, what is sought here by the drafters of the executive order, is a limitation on speech. And thats what the First Amendment does not allow.

Of course, a lot of this has to do with Trump trying to distract his base from the fact that over 100,000 people have died from corona virus, and he let it happen. Or caused it by his inaction and his easily seen clips of denying that corona virus would do any harm. The death toll rises, the new cases rise, in places where Trump voters could be mortally affected, and he wants to point the finger at anyone else.

Nevertheless, Abrams said he doesnt think Trump can get away with it.

Abrams said: At the end of the day, Im confident, maybe wrong, but Im confident that the administration will not be able to prevent Twitter and its competitors from putting in their own ultimate, for themselves, judgment that something the presidentor anyone elsesays online is inconsistent with the truth.

Roger Friedman began his Showbiz411 column in April 2009 after 10 years with Fox News, where he created the Fox411 column. He wrote the Intelligencer column for NY Magazine in the mid 90s, reporting on the OJ Simpson trial, as well as for the real Parade magazine (when it was owned by Conde Nast), and has written for the New York Observer, Details, Vogue, Spin, the New York Times, NY Post, Washington Post, and NY Daily News among many publications. He is the writer and co-producer of "Only the Strong Survive," a selection of the Cannes, Sundance, and Telluride Film festivals, directed by DA Pennebaker and Chris Hegedus.

Excerpt from:

First Amendment Legal Expert Floyd Abrams on Trump's Chilling Executive Order Designed to Kill Free Speech - Showbiz411

Demonstrators gathered at the Texas Capitol on May 31 to protest police brutality. (Christopher Neely/Community Impact Newspaper)

Gov. Greg Abbott publicly issued a statement on Floyds death May 30 alongside an announcement that he had distributed state resources to Austin, Dallas, Houston and San Antonio in an effort to maintain public safety.

Texas and America mourn the senseless loss of George Floyd and the actions that led to his death are reprehensible and should be condemned in the strongest terms possible, Abbott said in the statement. As Texans exercise their 1st Amendment rights, it is imperative that order is maintained and private property is protected.

He also said he and officials with the Texas Department of Public Safety had spoken to each citys mayor and law enforcement officials and that more than 1,500 DPS peace officers were assigned to help local police departments. Later that day, Abbott announced he had activated the Texas National Guard and followed up on his previous comments about protests.

More than 17,000 guard members were activated across 23 states and Washington, D.C., as of Monday morning, according to a National Guard statement.

"Every Texan and every American has the right to protest and I encourage all Texans to exercise their First Amendment rights," Abbott said in the first May 31 statement. "However, violence against others and the destruction of property is unacceptable and counterproductive. As protests have turned violent in various areas across the state, it is crucial that we maintain order, uphold public safety, and protect against property damage or loss.

Abbott issued two additional statements June 1 in response to the weekend's protests and violence. In the first, Abbott announced he will hold a June 2 briefing and press conference alongside local and state officials about the state's response to the protests in Dallas. In the second, the governor said he and Texas' four United States Attorneys will pursue federal prosecution against any out-of-state suspects for violence, looting or other violent offenses related to protests in the state.

"Texans must be able to exercise their First Amendment rights without fear of having agitators, including those coming from out-of-state, hijack their peaceful protest," said Abbott and U.S. Attorneys John F. Bash, Erin Nealy Cox, Stephen J. Cox and Ryan K. Patrick, in the statement. "Todays announcement will ensure there are harsh consequences for those breaking the law and that they will be prosecuted to the fullest extent of the law."

The governors announcements came after each of the states largest cities experienced large protests and some violence over the weekend.

In Austin, the police and city transportation departments said portions of I-35 and several nearby roads downtown were closed due to protests on Saturday and Sunday. The Austin Police Department said on Twitter that demonstrators threw objects, including rocks, bricks, eggs, water bottles and Molotov cocktails, throughout May 30, to which officers responded by firing less-than-lethal rounds, including rubber bullets and bean-bag rounds.

Largely peaceful protests went on in downtown Dallas throughout the afternoon of May 30, the Dallas Police Department said in social media posts. Police said some squad cars were damaged by protestors in the afternoon, and later in the evening, demonstrators began throwing rocks, looting and blocking portions of Hwy. 336 and I-35. Two of the city's malls were closed due to threats of looting, police said, and Dallas Area Rapid Transit services were suspended overnight. Police said 74 arrests were made May 30.

Mayor Eric Johnson posted several tweets related to protests over the weekend, including statements of support for protestors and condemnations of violence reported alongside demonstrations. Johnson declared a local state of disaster in Dallas on May 31 due to the nighttime riots and looting that took place over the previous days; he also allowed city officials to implement a 9 p.m.-6 a.m. curfew in the citys downtown area. Police said they made dozens of arrests the night of May 31, including several related to curfew violations.

Acevedo said Sunday he hopes to provide a police escort for George Floyds funeral when his body returns to Houston. Acevedo said more information on the escort will be provided during a June 2 march to City Hall, which will feature Turner and other city officials alongside members of Floyd's family, community activists and Houston rappers Trae Tha Truth and Bun B.

The planned demonstrations from earlier today were peaceful, and the organizations did exactly what they said they would do to keep others safe," Police Chief William McManus said in a May 30 statement. "The situation was escalated by some bad actors whose only intent was to incite violence and cause destruction. The actions of a few do not represent the majority of those who came out to peacefully demonstrate."

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Texas officials respond to demonstrations, unrest in wake of George Floyd killing - Community Impact Newspaper

In a non-binding opinion, Texas Attorney General Ken Paxton stated that public employers in Texas have an obligation to provide notice to employees of their First Amendment right to opt-out of dues-paying used for political speech, and a one-year renewal of such a notice would likely be in line with constitutional precedent.

The 2019 SCOTUS decision in Janus v. AFSCME ruled that public employees cannot be compelled to pay dues to a union under the First Amendment.

Unions, public and private, have long used their member dues to pay, in part, for political speech. The political speech, by its very nature, is partisan and so some members are effectively sponsoring speech with which they disagree, with no ability to opt-out.

Enter Mark Janus of Illinois.

His lawsuit against his employer, who had for decades taken dues out of his wages and used them for political speech, changed the way unions could operate.

He secured an opt-out for public union employees who did not want to pay dues for speech that didnt represent their values.

And now, the application of that decision must be faced. At the request of State Rep. Briscoe Cain (R-Deer Park), Paxtons office issued opinions on three questions:

Paxton answered that, yes, the state and political subdivisions must provide notice to their employees of their ability to opt-out and cannot take dues from wages without consent from the employee. He further stressed that dues should be collected in a way that ensures voluntariness such as by requiring employees to directly pay their fees to the union rather than having them removed before the wages reach the employee.

In the request, Cain laid out proposed language that could serve as a consent decree. It read:

I recognize that I have a First Amendment right to associate, including the right not to associate. My rights provide that I am not compelled to be a member of a labor organization. I am not compelled to pay a labor organization any money as a condition of employment, and I do not have to sign this consent form. However, I am waiving this right and consent to union membership. I also consent to having union dues deducted from my paycheck. My consent may be revoked at any time, resulting in the immediate termination of any financial agreement to pay the union dues, fees, or any other form of payment.

Paxton affirmed this language would satisfy the requirements laid out by Janus.

For the third question, Paxton suggested that while the Janus decision is vague on the question, a consent renewal period of one year would likely be satisfactory. He further added that a consent period stretching beyond that could be satisfactory as well, but a one-time consent decree would not follow SCOTUSs ruling.

Its been about two years since the Janus decision but states are still ironing out how to apply the jurisprudence to real life. Texas, too, will have to decide how to proceed for its public unions. Cains questions are intended to begin that process ahead of the 87th Legislature.

Disclosure: Unlike almost every other media outlet, The Texan is not beholden to any special interests, does not apply for any type of state or federal funding, and relies exclusively on its readers for financial support. If youd like to become one of the people were financially accountable to, click here to subscribe.

A free bi-weekly commentary on current events by Konni Burton.

Continued here:

Public Unions Must Notify Employees of Right to Opt Out, Attorney General Paxton Says - The Texan

GENESEO Livingston County Sheriff Thomas J. Dougherty confirmed Tuesday his deputies wont disturb gatherings of more than 10 people if theyre gathered for the purpose of practicing their religion. Such a gathering would be in violation of an executive order from Gov. Andrew Cuomo and punishable by an up to $1,000 fine.

I did put out a written directive to our patrol division members stating that if we are called to investigate a PAUSE violation involving people gathering for the purpose of a religious service, to do a drive by only, document in a report and forward to the chief deputy of our police services for further review, said Dougherty in an email. We will not be disrupting these services.

The contents of the directive are in line with the actions the Sheriffs Office has taken in response to previous complaints alleging violations of Cuomos New York on PAUSE order in Livingston County, Dougherty said.

We have not made one arrest on a PAUSE-related complaint but instead investigated and, if founded, educated only, he explained.

Dougherty said his decision to issue the directive was very difficult, especially given the intent of Cuomos order to minimize loss of life during a public health crisis. But with businesses starting to resume operations under the first phase of the governors reopening plan, and more slated to begin opening in Phase II, it ultimately came down to a Constitutional issue, he said.

The First Amendment is very clear and therefore we will not interfere with these religious gatherings, Dougherty said. Instead, we will do the drive by, document and review each case without disruption.

Dougherty declined to provide a copy of the written directive he sent to deputies.

New Yorks public gathering restrictions, which have been in place in some form since mid-March, started to slacken earlier this month in certain areas of the state that met criteria laid out in Cuomos reopening plan, which he dubbed New York Forward.

The plan established four different phases during which certain types of business are allowed to start reopening in the regions of the state that achieve public health metrics, such as a sufficiently low coronavirus infection rate and the presence of robust contact-tracing capacity.

The Finger Lakes Region, which includes Livingston County, was among the regions allowed to begin Phase I reopening May 15. The phase allowed businesses in the construction, agriculture and manufacturing industries, among others, to resume operations, provided they observe social distancing and other public health measures meant to slow the spread of the new coronavirus.

To read the New York Forward reopening guidelines, click here.

But nowhere in Cuomos initial reopening plan was there mention of when places of worship would be allowed to resume normal religious observances. In statements May 18, the states budget director, Robert Mujica, said churches would be allowed to begin reopening in the fourth and final phase of the states reopening plan.

That drew criticism from faith leaders, 300 of whom signed an open letter May 19 calling on Cuomo to prioritize the safe re-opening of churches for in-person worship services.

In a statement announcing the letter, Jason McGuire, executive director for New Yorkers for Constitutional Freedoms, a conservative values advocacy and lobbying group, argued churches should be allowed to begin reopening earlier, during Phase II.

If it is safe to re-open retail establishments in a given region, it is safe to re-open churches in that region as well, said McGuire, a Lima resident.

Local faith leaders who signed the open letter include Rev. Paul Palmer of the Oakland Wesleyan Church in Nunda, Pastor Donald Ray of the Pleasant Valley Baptist Church in Geneseo, and Pastor Matthew White of Village Baptist Church in Mount Morris.

To read the letter, click here.

In statements May 20, Cuomo addressed the issue, saying religious gatherings of up to 10 people were OK, as long as participants observed social distancing guidelines and wore face masks. The governor followed those statements with a May 21 executive order, which permitted gatherings of ten or fewer individuals for any religious service or ceremony.

To read the executive order, click here.

Cuomo also encouraged places of worship to consider drive-in and parking lot services for religious ceremonies.

As a former altar boy, I get it. I think even at this time of stress and when people are so anxious and so confused, I think those religious ceremonies can be very comforting, Cuomo said. But we need to find out how to do it, and do it safely, and do it smartly. The last thing we want to do is have a religious ceremony that winds up having more people infected.

In a statement posted to its website, NYCF said Cuomos 10 or fewer people concession on religious services doesnt go far enough, calling it an attempt to appease faith communities by making a minor gesture in our direction that falls far short of what is needed.

Added the group: A continued ban on worship services of more than 10 people effectively prevents all but the smallest churches from holding in-person services. There is no public health reason to bar churches in areas that have not been significantly affected by the pandemic from holding in-person services, provided that health and safety precautions are taken.

More:

'The First Amendment is very clear': Sheriff's Office won't break up religious services for 'NY on PAUSE' violations - The Livingston County News